Look-conscious retailer found liable for religious discrimination in firing of Muslim worker

September 9, 2013

The San Francisco Bay Area office of the Council on American-Islamic Relations (CAIR-SFBA) and LAS-ELC today announced a legal victory in a lawsuit against clothing retailer Abercrombie & Fitch over the firing of a Muslim worker who refused to remove her religiously-mandated hijab (headscarf) as a condition for keeping her job.

U.S. District Judge Yvonne Gonzalez Rogers ruled that Abercrombie & Fitch violated federal and state civil rights laws against workplace discrimination when it fired Hani Khan in 2010 for refusing to remove her hijab. The lawsuit, which was filed by CAIR-SFBA, LAS-ELC and the U.S. Equal Employment Opportunity Commission (EEOC), sought to vindicate Khan’s rights against religious discrimination in the workplace.

“Abercrombie only offers unsubstantiated opinion testimony of its own employees to support its claim of undue hardship. Abercrombie failed to proffer any evidence from those four months showing a decline in sales in the Hillsdale store; customer complaints or confusion; or brand damage linked to Khan’s wearing of a hijab.”

“I was shocked and surprised when I was asked to remove my hijab and then fired for refusing to comply,” said Khan. “It is not the kind of thing that anybody expects to happen, especially when you are working hard and doing a good job. It was important for me to challenge what happened because it was a violation of my rights, but also because I want to help make sure it never happens to anybody again. That is what this case is about for me.”

“This decision confirms that the way businesses hold themselves out to the public, and the image they wish to project, must be balanced with their employees’ rights to be free from workplace discrimination – in this case, on the basis of Ms. Khan’s religion, Islam,” said Christopher Ho, senior staff attorney at the LAS-ELC and Director of the National Origin, Immigration, and Language Rights Program.

“At the heart of this case is the belief that no one should ever have to choose between their religion and work”, said Zahra Billoo, Executive Director of CAIR-SFBA. “All Americans have a right to reasonable religious accommodation in the workplace, and for Muslim women this includes the right to wear a hijab to work.”

Although Judge Gonzalez Rogers found Abercrombie liable for violating Khan’s civil rights, trial is scheduled to begin September 30 to decide the extent of back pay, compensatory and punitive damages, and injunctive relief that Abercrombie must provide as a result of its discriminatory actions.

Khan was fired from her job at a Hollister Co. store (operated by Abercrombie & Fitch) at the Hillsdale Shopping Center in San Mateo, Calif., after she had worked there successfully and without any customer complaint for four months. When she was initially hired, Khan was told her hijab would not be in conflict with the company's so-called "Look Policy" as long as she wore it in company colors, which she did. Nonetheless, in February 2010, Abercrombie managers demanded that Khan remove her hijab while working. When she said her religious beliefs prevented her from complying with the demand, and requested a religious accommodation, Khan was suspended and terminated shortly thereafter.

In June 2011, CAIR-SFBA and LAS-ELC filed a federal lawsuit in San Francisco against Abercrombie & Fitch, charging it with having unlawfully discriminated against Khan because of her religious beliefs as a Muslim. Khan’s complaint alleged violations of Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act. Abercrombie responded that accommodating Ms. Khan would be an “undue burden" because it would hurt its “brand image.”

Prior to the scheduled jury trial, Khan and the EEOC asked Judge Gonzalez Rogers to render a decision on the undisputed facts that had been developed in the litigation.

This court is the second in the Northern District of California to find that Abercrombie cannot demonstrate that it is an undue hardship to accommodate employees who wear hijabs. Earlier this year, Abercrombie similarly failed to justify its refusal to hire a woman who applied to work at an Abercrombie Kids store in Milpitas.